刑事诉讼权利宪法化的国际趋势与借鉴

刑事诉讼权利宪法化始于美国,并呈现出国际化发展趋势。考察美国宪法与"权利法案"的形成背景,展现的是人权保护意识的逐步深化和制度完善的过程,特别是宪法权利可诉性的确立将其上升到操作层面。我国宪法在赋予公民权利的同时也有特殊保护条款,为顺应国际潮流,加大人权保护力度,应当审慎借鉴并逐步实现刑事诉讼权利的宪法化。     

The Rome Statute of the International Criminal Court: A Challenge to Impunity

Netherlands International Law Review -     

问题与误读:刑事缺席审判制度质疑

当出现涉案人、犯罪嫌疑人、被告人死亡、逃跑或者丧失诉讼行为能力等情形时,案件将处于不立案、诉讼中止或者终止的状态。在这些诉讼状态下,如何处理涉案的非法财产,是一个亟待解决的问题。在我国签署《联合国反腐败公约》的背景下,构建刑事缺席审判制度似乎成了一个没有争议的选择。然而,该制度在理论上有其不可克服的缺陷,只有适当将物的处理与人的处理相分离,完善我国的刑事没收程序,才是当前解决相关问题的有效途径。     

从我国刑事法庭设置看刑事审判构造的完善

刑事法庭的设置因其直观形象地反映了控、辩、审三方诉讼主体在审判中所处的法律地位和相互关系而成为刑事审判构造的重要表征。由于我国古代以“审讯”为核心的审判模式的影响、被告人沉默权的缺失以及刑事审判方式改革不够彻底等原因,导致我国现行刑事法庭设置呈现出“伞型”特征。重塑我国刑事审判构造,应当去除目前庭审方式的“审讯”色彩,加强庭审的“听证”性,建立审判中立、控辩平等、当事人主导的“正等腰三角形”的审判构造。     

The Dissemination of Detainees Awaiting Trial Before International and Internationalized Criminal Tribunals

This paper will focus on the rights attributed to detainees who are facing charges before international and internationalized criminal courts. The question is whether their position merits a different approach compared to the position of detainees who are confronted with domestic criminal trials. In particular, this paper will address the question whether, and to what extent, international human rights have a direct effect on the position of the former detainees. Attention will focus on case law of the European Court of Human Rights vis-a-vis the rights of detainees and the impact thereof on the position of detainees who are held in custody on behalf of international and internationalized criminal courts. The author is Professor of International Criminal Law at Utrecht University (The Netherlands), defence counsel acting before the ICTY, ICTR and SCSL, and a partner of the law firm Knoops & Partners Advocaten in Amsterdam, the Netherlands.     

Processing Evidence and Drafting Judgments in International Criminal Trial Chambers

International criminal trials are usually very complex, lengthy and heavy on evidence. This complicates the Trial Chamber’s fact finding task and hampers its ability to issue a reasoned written judgment without undue delay. The present article examines the specific challenges of drafting an international criminal trial judgment, with the main focus being on mastering the huge amounts of evidence. It further provides practical recommendations on how to deal with these challenges.     

‘You Will Receive a Fair Trial Elsewhere’ The Ad Hoc International Criminal Tribunals Acting as Human Rights Jurisdictions

Netherlands International Law Review -     

Compromising the Authority of International Criminal Justice: How Vojislav Seselj Runs His Trial

eelj's conduct continues to cause major problems to the InternationalCriminal Tribunal for the former Yugoslavia. The approach ofboth the Trial Chamber and the Appeals Chamber to the accused'shunger strike is a matter of serious concern. Especially theAppeals Chamber's decision leaves one with the impression thateelj is running his own trial. This note offers a critical analysisof the Trial Chamber's and Appeals Chamber's responses to theaccused's hunger strike and their damaging implications.     

刑事审判监督问题初探

在我国,刑事审判监督具有法理基础和现实必要性,但现阶段的刑事审判监督制度存在诸多问题,针对这些问题,提出完善相关立法、探索新机制、改进考核机制、增强刑事审判监督意识、提高监督水平的四点建议.     

刑事上诉审之构造

刑事上诉审构造有覆审制、续审制及事后审查审制三种模式,美、日、德等国各自采用不同的上诉审构造。就欧美国家上诉审运行的深层机理而言,抑制事实纠错和建构程序保障机制是各国刑事上诉审良性运作的基础,且各国上诉审构造背后均有其诉讼体制上的原因。我国目前的上诉审构造在庭前审查机制、审查范围及审查标准等诸问题上均存在若干流弊,必须借鉴他国法治经验,对我国二审程序进行改造。改造我国刑事上诉审不应当片面地追求当事入主义或盲目比附他国经验,而是应当根据我国的法制环境来建构改良式的覆审制。     

Intention in Criminal Law: The Challenge from Non‐Observational Knowledge

Intention is at the heart of criminal law. If it is not the mens rea requirement found most often in offences, it is still the standard against which other grades of fault tend relatively to be judged. It has generated much controversy, as the crucial question, “Did the defendant intend X?” is resistant to clear answers. This paper argues that intention‐questions are difficult because intention is not the thing law takes it to be: Importantly, contrary to law's assumptions, it is neither a state of mind nor is it connected in an exclusive manner to the reasons for which we act.     

The Sociologist as Story Teller: The Broken Foster Care System Used as Mitigation at Criminal Trial

This paper describes the role a sociologist in a capital murder case involving a defendant who was in foster care and adoption for most of his youth. The author of this paper worked as a sociologist/ mitigation expert in this case. The circumstances of his tragic life leading up to and in the foster care system is presented as mitigation. A literature review on the issues surrounding foster care, presented here, was developed and given to all experts and attorneys working on this case. These issues were to be presented whenever appropriate in their testimony or questioning, during both the guilt and penalty phase. The jury found him guilty of two counts of first degree murder; but voted for life during the sentencing phase. The utility of sociology in criminal cases in general is discussed.     

论刑事缺席审判的适用范围——比较法的视角

建立刑事缺席审判制度已经成为我国学界的共识,但是在刑事缺席审判的适用范围上尚存在一定的分歧。从比较法的角度来看,刑事缺席审判主要适用于两种情形:一是,被告人自愿缺席;二是,在特定情况下,被告人非自愿缺席或自愿与否不明。在这两种情形下,对被告人进行缺席审判都具有一定的正当性,原因在于被告人的出庭权不仅具有可放弃性,而且在特定情况下还具有可限制性。我国在未来建立刑事缺席审判制度时,也应当将其适用范围限定在上述两种情形。     

The Comfort of International Criminal Law

This paper examines the changing relationship between the disciplines of international criminal law (ICL) and international human rights law; I particularly focus on the associations of the former with comfort and the latter with discomfort. It appears that a shift may be taking place in that ICL is being refashioned from a field enforcing human rights law to one which has assumed an entirely independent status. Indeed, ICL appears to be crowding out international human rights law. The inquiry begins with the question whether ICL is becoming the preferred discursive framework for practitioners, academics, and politicians. A contemporary desire for certainty over contention, action over discourse, and simplicity over complexity is revealed; in short, a preference for comfort over discomfort. The second half of the paper is dedicated to highlighting some of the concerns attached to this preference and suggesting possible techniques for addressing these concerns. Employing the idea of ‘discomfort’, I refer to the relevance of (1) Michel Foucault’s Ethics of Discomfort, (2) Judith Butler’s idea of the Language of Discomfort, and (3) draw on Franz Kafka’s literary exploration of the Comfort in Discomfort. The ideas culminate in a call for relearning the comfort in discomfort of contention, discourse and complexity in international law.